' SH. RIAZ AHMAD, J.---This order shall dispose of Crl. A.27 of 1989 filed by Mushtaq Ahmad, Nazar Ahmad and Muhammad Rafique, Criminal Appeal No,53 of 1989 filed by Javed All and Ijlees Ahmad, Criminal Appeal No,56 of 1989 filed by Mehfooz Ahmad, Kifayat Ullah and Muhammad Aslam, Criminal Appeal No,96 of 1989 filed by Saghir alias Gulzar Ahmad, Munir Ahmad, Tariq, Javed Iqbal, Zafar Ahmad and Muhammad Ashraf and Criminal Appeal No,97 of 1989 filed by the State assailing the acquittal of respondents as well as for seeking the enhancement of their sentences.
Reportedly, respondent No,7 has since died, therefore, the appeal to his extent stands abated.
2. All the appellants named above faced their trial before the Special Court for Speedy Trial, Gujranwala on the charges under sections 302/307/325/379 and 148/149, P.P.C. for having caused the four murders of Muhammad Sharif, Muhammad Rafique, Ghulam Rasul and Khan Muhammad deceased. At the conclusion of the trial, Mehfooz, Javed, Saghir alias Gulzar and Muhammad Arshad absconder were sentenced to death on four counts each, and to pay fine of Rs, ten thousand each on four counts, or in default thereof, to further undergo R.I. for two years on each count. Appellants Ijlees, Mushtaq, Aslam, Rafique, Tariq, Munir Ahmad, Zafar, Kifayat, Javed Iqbal and Nazar son of Taj Din were also convicted and sentenced to undergo life imprisonment each on four counts, and to pay fine of Rs, five thousand each on every count, or to undergo further R.I. for one year each on each count. They were also convicted under section 447, P.P.C. and were sentenced to undergo 3 months' R.I. each. In addition thereto, the trial Court also directed each of the appellants to pay Rs, fifty thousand (Rs,50,000) each as compensation to be paid to the heirs of the deceased or in default thereof, to suffer further S.I. for six months each. All the sentences were ordered to run concurrently. No benefit under section 382(B), Cr.P.C. was given to the appellants.
3. Aggrieved by their conviction and sentences, the appellants have preferred the appeals, referred to above. In course of hearing of these appeals, it transpired that after recording the statements of some witnesses, some of the appellants were summoned who were not placed in column No,2 or 3 of the challan, and no opportunity was given to them to cross-examine the prosecution witnesses who had already been recorded before they were summoned, and thus, the case was remanded to the trial Court to commence the trial afresh, and in pursuance of the remand the present impugned order dated 19-1-1989 was passed which has been assailed through appeals, mentioned above.
4. In course of the hearing of the appeals, it was , pointed out by the learned counsel for the appellants that Arshad who was an absconder could not have been convicted in absentia, and therefore, his conviction and sentences are unsustainable. There can be no cavil with this proposition inasmuch as, the Supreme Court of Pakistan has declared such trial to be in violation of the Constitution. In this view of the matter, the conviction and sentences of Arshad absconder are set aside. The prosecution branch is directed to resubmit the challan against him, so that, he can be tried afresh in accordance with law on the aforesaid charges.
5. It has also been pointed out that the trial in this case also stands vitiated, inasmuch as, the mode and manner in which the statement under section 342, Cr.P.C. was recorded in post-remand proceedings was illegal. It has further been urged that the statement under section 342, Cr.P.C. in pre-remand proceedings was brought on the record in post-remand proceedings, and only a cursory statement was recorded, and question was put to the appellants, whether each of them wanted to add anything in his statement under section 342, Cr.P.C. under pre-remand proceedings. Similarly, a question was put whether the appellants wanted to add anything in their statements under section 342, Cr.P.C. in pre-remand proceedings.
6. After anxious consideration of all the facts and circumstances of this case, we are of the view that this methodology adopted by the trial Court is not in accordance with law and infringes the basic principle of justice that not only it should be done, but appear to have been done. The underlying idea of the provision of section 342, Cr.P.C. is to afford an opportunity to the accused to explain the evidence brought against him by the prosecution. In other words, it is a salutary principle of natural justice, which seems to have been flouted by adopting the methodology of combining the statements under section 342, Cr.P.C. in pre-remand proceedings with the statements in post-remand proceedings. This practice is deprecated.
7. Another crucial question which has also come to our notice is that as far as Saghir Ahmad appellant is concerned, no question was put to him that he as a member of an unlawful assembly armed with deadly weapons had in fact attacked and killed the four persons in prosecution of their common object. Omission to put such question has definitely prejudiced the case of Saghir Ahmad, and it is not curable under section 537, Cr.P.C.
8. Mr. Amjad Ohad, Advocate appearing on behalf of the complainant argues that the case of Saghir Ahmad and Arshad should be separated, and the case of rest of the appellants should be decided on merits. It was also suggested by the learned counsel that at the conclusion of the hearing of this appeal, it can be ascertained whether in fact Saghir Ahmad has been prejudiced or not.
9. In our view this argument cannot be allowed to be prevailed, because basically the mode and manner of recording the statement under section 342, Cr.P.C. was fallacious. In this view of the matter, and considering that these are very old appeals, we set aside the conviction and sentences of each appellant, and remand the case to the Court of Khawaja Mehmood Ahmad, Judge, Special Court for Speedy Trials at Gujranwala, to record the statements of all the appellants afresh under section 342, Cr.P.C. as well as under section 340(2), Cr.P.C., if any of the appellants wishes to make such statements. Needless to say that if the appellants want to produce any defence, the same shall be recorded by the trial Court. As far as the acquitted accused are concerned, their acquittal is also set aside. They shall also appear before the trial Court so that their statements under section 340(2), Cr.P.C. are also recorded. We further direct that a copy of this order shall be sent to Khawaja Mehmood Ahmad, Special Judge, for Speedy Trial Court at Rawalpindi so that he comes to Gujranwala to conclude the trial of this case within a month. It is clarified that the learned Special Judge shall decide the case of each appellant and the acquitted accused on merits and without being influenced by the order of this Court. In the terms noted above, the appeals are disposed of.